443 F.

2d 225

James A. SUMMERS, Jr., Appellant,

v.
R. F. HORTON et al., Appellees.
No. 14130.

United States Court of Appeals, Fourth Circuit.

Argued June 1, 1970.
Decided June 7, 1971.

Adam Stein, Charlotte, N. C. (Conrad O. Pearson, Durham, N. C., Jack

Greenberg and Michael Meltsner, New York City, and Chambers, Stein,
Ferguson & Lanning, Charlotte, N. C., on brief), for appellant.
Jay F. Frank and Jack R. Harris, Statesville, N. C. (Chamblee, Nash &
Frank, Raymer, Lewis & Eisele, and Collier, Harris & Homesley,
Statesville, N. C., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and
WIDENER, District Judge.
HAYNSWORTH, Chief Judge:

In his appeal from a judgment for the defendants after a trial to the court, the
plaintiff contends that the court erred in failing to find the commission by the
defendants of a deliberate or negligent wrong. We affirm.

The action is founded on alleged violations of 42 U.S.C.A. 1981, 1983 and

1988 by the defendants, police officers of Statesville, North Carolina and the
sheriff and jailer of Iredell County, North Carolina, in wilfully causing injuries
to, or failing to prevent injury to, the plaintiff at a time when he was in their
custody. A conspiracy is also alleged.

The District Judge made detailed findings of fact.

On the night of August 19, 1966, Summers was arrested, while highly

intoxicated, by two Statesville police officers. At that time, Summers was in

good physical condition, apart from his drunkenness. He was not injured in any
way during his arrest and transportation to the county jail.
5

On arrival at the jail Summers was booked for public drunkenness and allowed
to telephone a bail bondsman, who arranged to post bond the following
morning. Thereafter he was routinely searched and placed in a twelve-man cell
block by the defendant Shoemaker, the jailer then on duty.

At some time after he was placed in the cell block, Summers was attacked and
beaten by other inmates, inflicting serious bodily injuries. Although a friend of
Summers, Lewis Bradshaw, testified that during the beating he and other
inmates cried out for help, neither Shoemaker nor an inmate trusty in a cell
above Summers' cell heard any outcry, although the windows were open and an
intercom system between the cell block and the office was in operation. Neither
Bradshaw nor any other inmate called Shoemaker's attention to Summers'
beating on any of the ten later occasions that night on which he entered the cell
area, on three of which he admitted other prisoners to the same cell block.
Shoemaker saw no indication of anything amiss while going about his duties.

On the morning of August 20, when the bondsman arrived, Shoemaker entered
the cell block area and called for Summers. He appeared at the cell door with a
swollen eye and with blood on his face and clothing. On inquiry by Shoemaker,
he said that he had been beaten by other inmates but could not, or would not,
state the names of his assailants. Nor would any other inmate state who was
responsible. On Summers' release, he was admitted to a hospital, where he
remained until September 17. The extended hospitalization was necessitated
principally by delirium tremens brought on by alcohol withdrawal and not by
his injuries.

At the close of all the evidence the district judge found in favor of the
defendants. Summers concedes that, as to the two police officers, the evidence
justified a finding of no liability. He also concedes, properly, that the evidence
failed to show a conspiracy. However, he argues that the judge erred in refusing
to allow him to reopen his case after he had rested in order to present testimony
by his brother, claimed to be newly discovered. The judge, recognizing that the
request was properly addressed to his discretion, declined the proffer. We find
no abuse of that discretion.

With respect to Shoemaker, Summers contends that the finding of no liability is

erroneous. Three arguments are presented in support of this contention that

Shoemaker was negligent in failing to prevent the beating, that he negligently

failed to halt it once it started, and that he was negligent in waiting until
morning without providing medical attention. The short answer to all of these
claims, is that they are based on factual premises directly contrary to the factual
findings of the district judge, which are not clearly erroneous.
10

Two reasons are assigned for the claim of negligence in Shoemaker's failure to
prevent the attack. First, Shoemaker is claimed to have placed Summers in a
dangerous position by assigning him to the same cell as his assailants. This
argument would have merit if there had been reason to suspect that the other
inmates were prone to violence. No such reason was shown. There had been no
occurrence of violence or disorder in the jail for more than a year before
Summers was assaulted, and none of the inmates already in the cell block were
known to have histories of or propensities toward violent behavior.

11

Second, Summers argues that it was negligent for Shoemaker to place him in a
cell block already filled to capacity. By creating an overcrowded condition in
the cell, Shoemaker is claimed to have created a situation likely to result in
violence. We need not consider the legal basis for this argument, as it is without
factual support. The trial judge found that there were twelve men in the cell
block, including Summers and his assailants, at the time of the assault. That
was the number for which it was designed.1

12

Summers next contends that, even if Shoemaker was properly absolved of

liability for the assault itself, he was derelict in his duty in failing to stop it
when Summers and other inmates cried out for assistance. The argument, of
course, assumes that such an outcry occurred, which is contradicted by the
judge's findings. The only testimony on which the claim is based is that of
Lewis Bradshaw, who claimed to have shouted for help for some time without
response. Yet Shoemaker never heard an outcry, nor did Roy Lee Campbell, a
trusty confined immediately above Summers' cell. When on numerous later
occasions Shoemaker came into the area to admit other prisoners, Bradshaw
admittedly said nothing whatever to him. In his findings of fact the judge
implicitly but pointedly rejected Bradshaw's credibility, and we cannot say that
there was not ample basis for that evaluation of his testimony.

13

Finally, Summers argues that Shoemaker's failure to provide prompt medical

attention renders him liable for the injuries, even if he is not responsible for the
beating or its continuation. Again, this argument is based almost entirely on
testimony rejected as incredible by the trial judge, who found that Shoemaker
had no knowledge of the assault until the following morning when he called
Summers to meet the bondsman.2 That finding is supported by the record.

14

Affirmed.

Notes:
1

The only evidence of the number of inmates in the cell block was adduced
through questioning of Shoemaker and Myers, an alternate jailer not on duty at
the time. Counsel for Summers read a list of names, asking the witnesses to
state from their recollection which cell block each named person was assigned
to at the time. If the attack, which Summers said began immediately after he
was admitted, occurred before 10:30 p. m., when another prisoner was
admitted, the responses to the questions would indicate that there were between
ten and thirteen persons in the cell block. If the attack occurred after 10:30, the
number would range between eleven and fourteen. After 4:00 or 4:30 the
following morning, when two more were admitted, the cell block clearly
became overcrowded, unless some of the inmates had been released, but the
attack had long since occurred by that time

It is claimed by Summers that Shoemaker's testimony is inherently incredible in

view of the fact that he admitted other prisoners to the cell block after the
beating occurred. Summers says Shoemaker could not have failed to see him
lying on the cell floor in a badly beaten condition, covered with blood. Apart
from the fact that there was evidence to indicate that his injuries, although
substantial, were not as serious as he claims, and that the physical evidence fails
to substantiate the claim that he was "covered with blood," the claim that he
was located in a position from which he must have been seen is based, like
almost all of the statements of fact in his brief, on the discredited testimony of
Lewis Bradshaw. The most that can be said of this contention is that the
evidence is conflicting. The resolution of conflicts is for the trier of fact, not for
this Court. It was certainly not clearly erroneous for the district judge to
conclude, as he did, that Summers' appearance during the night was not
significantly different from that of any other person sleeping off a bout with
alcohol